University Presents CID Arguments in Circuit Court

August 22, 2010 — Oral arguments were held Friday in Albemarle County Circuit Court, with the University of Virginia again asking the court to set aside the Virginia attorney general's civil investigative demands, or CIDs, regarding a former professor's climate research.

Judge Paul M. Peatross Jr. said he hoped to issue an opinion in the next 10 days.

At issue is whether U.Va. must comply with two CIDs from the Office of the Attorney General, which wants to investigate whether grants awarded to former U.Va. professor Michael Mann were obtained using fraudulent or manipulated data.

Mann, an assistant professor of environmental sciences at the University from 1999 to 2005, is known for his research on global warming. He has since joined the faculty of The Pennsylvania State University.

The University's arguments revolved less around global warming than whether the attorney general acted in accordance with the requirements of the Fraud Against Taxpayers Act, -- or FATA -- under which the CIDs were issued.

Chuck Rosenberg of the Washington, D.C., firm of Hogan Lovells represented the University. The General Assembly, he noted, did not include state agencies in certain provisions of FATA, and Virginia courts have ruled that public universities are agencies of the state.

"They are funded, controlled and answerable to the General Assembly," he said, calling this "the most important threshold issue."

Rosenberg noted that FATA does not cover the grants the attorney general seeks to investigate. The CIDs request information and documents in connection with five grants, as well as correspondence between Mann and nearly 40 scientists and other individuals over an 11-year period. The five grants at issue – four of them awarded by federal agencies and involving the disbursement of federal funds – totaled some $466,000.

Rosenberg said that federal funds don't become state money because they are moved through a university." If a grant is misused, he said, "it's not a claim on the commonwealth. It's a claim on the federal government." The one non-federal grant, he said, was awarded two years before FATA was enacted.

He reiterated the University's position that the CIDs didn't state an adequate rationale for an investigation and did not "state the nature of the conduct that constitutes a violation of FATA." Judge Peatross sought to understand that as well, and repeatedly asked Deputy Attorney General Wesley Russell Jr. to describe what Mann had done that made him subject to an investigation.

"There's significant international controversy over whether he has manipulated data in his work," Russell said, dismissing as irrelevant several academic reviews of Mann's work that found no inconsistencies.

Rosenberg argued that First Amendment protections for academic freedom must also inform the judge's decision. "No scientific investigation has ever found that Mr. Mann has ever engaged in fraudulent conduct or manipulated data," he said. "Even some of Mr. Mann's harshest critics concede that."

Pointing to an open letter to the attorney general from Thomas Fuller, a Mann critic, Rosenberg read: "No matter what has prompted your investigation, there is no doubt that it will be interpreted as a witch hunt. If you are in fact investigating a credentialed scientist for results that do not suit your political opinion, that interpretation is correct."